Target (inadvertently) teaches the importance of avoiding age-based stereotypes

I do a lot of speaking. One speech that I’ve been giving over the past couple of years is entitled, “X+Y+Z = A Generational Mess for Your Workplace.” I teach how employers can best manage the diverse needs and abilities of four different generations of employees. I discuss some broad-based generalizations about Traditionalists (age 70+), Baby Boomers (50-69), Gen X (35-49), and Gen Y (under 35). I always finish by discussing the very real risk of age discrimination if you treat these generalizations as gospel, and do not treat each employee, of age any, as an individual, with individual talents and abilities.

Target saw the need to offer the same type of training to its managers, but it left off the part about age discrimination. Gawker (h/t Business Management Daily) published Target’s training materials, entitled, Managing Generational Differences,” which, among other things, describe its oldest workers as “slow to adapt to change,” “rarely question[ing] authority” and see[ing] technology as “complex and challenging.”

When you are sued for discrimination, your training materials are fair game in litigation. While you write them to aid your employees, you must do so with (at least) one eye on the jury that will read them during trial. You do not want to have your manager explain to a jury, in an age discrimination case, if he thought the plaintiff was “slow to adapt to change” when he made the termination decision.

Federal appeals court rejects “retaliatory rehiring” claim

As part of massive reorganization, Allstate severed the employment of approximately 6,200 employee agent. In connection with the layoff, Allstate offered all of the employee agents the opportunity to convert their employment status into that of an independent contractor selling Allstate insurance products, provided that they signed a release of all legal claims against Allstate, including federal employment discrimination claims.

In filing suit on behalf of the employees, the EEOC took the position that conversion from an employee to an independent contractor, coupled with a general release, constitute unlawful retaliation under the federal civil rights laws.

In EEOC v. Allstate Ins. Co. (2/13/15) [pdf], the Third Circuit flatly rejected the EEOC’s folly.

It is hornbook law that employers can require terminated employees to release claims in exchange for benefits to which they would not otherwise be entitled. Nothing in the employment-discrimination statutes undermines this rule….

According to the Commission, Allstate could have complied with the antiretaliation statutes by simply firing all its employee agents for good, instead of giving them the opportunity to sell Allstate insurance in a different capacity. We are confident that federal laws designed to protect employees do not require such a harmful result….

The EEOC here fails to articulate any good reason why an employer cannot require a release of discrimination claims by a terminated employee in exchange for a new business relationship with the employer.…. [W]e are not persuaded by the Commission’s efforts to arbitrarily limit the forms of consideration exchangeable for a release of claims by a terminated employee.

In other words, the employer, and not the EEOC, gets to decide the post-employment benefit to provide an employee in exchange for a release of claims—whether it’s severance pay, continued health benefits, an engagement as a independent contractor, or something else. As long as the consideration is not something to which the employee is already entitled, a court will not second-guess its sufficiency.

FCRA class-action lawsuits should have your attention

In the last month alone, at least three huge national employers (Home Depot, Time Warner, and Michael Stores) have been hit with class action lawsuits alleging that their background screening practices for job applicants violate the Fair Credit Reporting Act.

What is the Fair Credit Reporting Act, and why must you, as an employer, pay attention to it? Thankfully, I have the answers, wrapped up in a tidy one-hour webinar I presented for BackTrack late last month. Enjoy!

WIRTW #355 (the “paraskevidekatriaphobia” edition)

Paraskevidekatriaphobia is the fear of Friday the 13th. Fragapane Phobia is the fear of celebrating birthdays. Today is my birthday, and, thankfully, I suffer from neither of these phobias. Happy birthday to me.

Here’s the rest of what I read this week:

Discrimination

• EEOC Regional Attorney John Hendrickson Offers Insights on EEOC’s Pregnancy Discrimination Guidance — via Jeff Nowak’s FMLA Insights
• Agreeing with EEOC, jury awards demoted boozing truck driver $119,000 — via Overlawyered
• “Fifty Shades” at the Water Cooler — via Evil HR Lady, Suzanne Lucas
• transvestism, transsexualism, gender identity disorders and ADA; True-False version — via Understanding the Americans with Disabilities Act (ADA)
• The Supreme Court and the Men Who Lactate — via Phil Miles’s Lawffice Space
• Employment Litigation is Too Expensive — via Christopher McKinney’s Texas Employment Law Blog
• Faruqi sex harassment trial: it’s a wrap! — via Robin Shea’s Employment & Labor Insider
• DOL Interactive Map Highlights State-by-State Protections for Pregnant and Nursing Women — via Joe's HR and Benefits Blog
• Three Observations about the New EEOC Statistics — via Dan Schwartz’s Connecticut Employment Law Blog

Social Media & Workplace Technology

• How Not to Start a New Job — via San Antonio Employment Law Blog
• Who CAN you fire for their social media activity? — via Mike Haberman’s Omega HR Solutions
• Facebook now lets you choose who controls your account after you die — via The Verge
• Invasion of the Body Cameras: You Need to Be Ready — via Inc.com
• Avoiding liability when searching employee devices — via Technology for HR
• Are RFID Chip Implants on the Horizon for Employees? — via Abovethelaw.com

HR & Employee Relations

• Can You Deny Employment for Falsifying a Job Application? — via employeescreenIQ Blog
• Does Your Office Have Dating Policies and Guidelines? — via ERC Insights Blog
• It Isn’t Your Father’s Workplace Anymore — via Huffington Post
• HR Lessons from Downton Abbey — via Blogging4Jobs
• Refresh Your Lame "Employee of the Month" Program With This Idea — via The HR Capitalist, Kris Dunn

Wage & Hour

• Worker underreports hours? You still owe OT — via Business Management Daily
• Must you pay an employee for mandatory alcohol treatment? — via Eric Meyer’s The Employer Handbook Blog
• Furious Lobbying Continues Ahead of New FLSA Regulations — via Wage & Hour Insights
• Is Ohio’s Minimum Wage On the Rise? — via Employer Law Report

Labor Relations

• Trade Groups Take Aim At Quickie Election Rule — via Labor Relations Today
• Calling the Police Over Handbilling in Front of Workplace Unlawful Because City Previously Designated Area as Public Right of Way — via Matt Austin Labor Law

Clowns, Black Sabbath tribute bands, and a lesson on the ADA

When I was a little kid, I was petrified of clowns. I would run screaming anytime I would see one in a parade, or one would show up on TV. I vividly remember a recurring nightmare of Ronald McDonald chasing me around the coffee table in our basement. Upon reflection, the dream was inevitable, given my coulrophobia, and the McDonald-land motif of a yellow coffee table, and bright red shag carpet that bore a striking resemblance to Ronald’s hair. I’ve been over my fear for nearly 40 years. But, if I wasn’t, I could flat our guarantee that I wouldn’t be applying for jobs at the circus. And, if I applied, I wouldn’t expect the circus to hire me.

Even if coulrophobia is an ADA-protected disability (and it likely is), that is only half of the equation to determine whether the ADA offers job protections to an individual with a disability. The individual must also be “qualified,” which means he or she must be able to perform the essential functions of the job, with or without reasonable accommodation.

With all of this as background, consider Waltherr-Willard v. Mariemont City Schools [pdf], decided yesterday by the 6th Circuit. Maria Waltherr-Willard is a schoolteacher suffering from pedophobia, a debilitating fear of young children. She sued Mariemont City Schools for disability discrimination when it denied her transfer request. Needless to say, she lost.

The ADA, as amended in 2009, is wide-reaching. I’m on record as saying that most medical conditions will qualify as “disabilities” under the statute. But, just because an employee is “disabled” does not mean that you must accommodate the disability. You need to engage to employee in the interactive process to determine if an accommodation is needed at all to enable the employee to perform the essential functions of the job, and if so, whether such an accommodation is reasonable and available. If the answer to these questions is no, then the ADA does not protect the employee.

(Yes, this is a real band).

Can you require vaccines for your employees?

You may heard that we have a bit of a measles issue going on around the country.

At his HR Solutions blog, and on his Twitter, Make Haberman asked, “Are measles protected by the ADA?”

The ADA no longer carves-out “short-term” impairments from its definition of “disability.” Thus, there is an argument to be made that the measles could qualify as an ADA-disability, provided that it substantially limits a major life activity of the sufferer. Given that one only suffers from measles symptoms (albeit rather severe symptoms) for a week or so, I have my doubts that a one-week impairment “substantially limits a major life activity” of the sufferer. No matter how loosely the Act’s 2009 amendments liberalized the definition of “disability,” I can’t imagine Congress intended the ADA to apply to short-term viruses.

Whether or not the ADA covers the measles as a disability, if you are going to fire an employee who cannot come to work because of the measles (FMLA notwithstanding), you need to engage in some serious self reflections about the type of employer you are.

Of course, if everyone was vaccinated against the measles, we wouldn’t need to have this discussion. So, can you require that your employees present proof of vaccination as a condition of employment? Here’s what the EEOC has to say on the issue:

An employee may be entitled to an exemption from a mandatory vaccination requirement based on an ADA disability that prevents him from taking the influenza vaccine. This would be a reasonable accommodation barring undue hardship (significant difficulty or expense). Similarly, under Title VII of the Civil Rights Act of 1964, once an employer receives notice that an employee’s sincerely held religious belief, practice, or observance prevents him from taking the influenza vaccine, the employer must provide a reasonable accommodation unless it would pose an undue hardship as defined by Title VII (“more than de minimis cost” to the operation of the employer’s business, which is a lower standard than under the ADA).

Generally, ADA-covered employers should consider simply encouraging employees to get the influenza vaccine rather than requiring them to take it.

At least as far as the EEO laws are concerned, private employers can require vaccinations, as long as you are willing to accommodate employees’ disabilities and religions.

Love has no boundaries—except at work

Some of you may recall that I serve on the editorial advisory board of Workforce Magazine. I also pen a monthly column for the mag. Since we are approaching Valentine’s Day, I’m sharing this month’s timely column. Enjoy.

	Look inside >
Love Has No Boundaries — Except at Work

What does a snowblower have to do with your next employee termination?

We’ve had a robust February of snow in Northeast Ohio, which provided the first excuse of the season to pull my snowblower out of the garage. Since we moved into our house a decade ago, there was not a snow storm that it couldn’t handle. The Sunday newspaper, however, is another story.

Two years ago, we cancelled our Plain Dealer subscription. As working parents of two young kids, reading the paper took a back seat to, well, life in general. The fine folks at the Plain Dealer, however, do not appear to believe us. Each Sunday morning, we awaken to find a four-page “promotional” edition of the paper in the driveway. No amount of phone calls have stopped the annoyance of this weekly driveway spam.

Last Sunday, I awoke to six inches of snow. Perhaps it was because the paper was buried under the blanket of white, or because it didn’t register as a fact important enough to recall, but I did not give the four pages of promo-news a second thought as I pushed the snowblower down my drive. More accurately, I didn’t give it a second thought until I saw a few scraps of paper fly from the chute, followed quickly by the smell of smoke and the abrupt sound of the blades seizing.

“F***ing newspaper,” I yelled!

My wife and I tried, without avail, to dislodge the wet mess of newspaper that had quickly hardened to concrete around and behind the impeller. Knowing that disassembling a piece of heavy machinery is well beyond my pay grade, my wife Googled how to unblock a jammed snowblower. What she read stopped us in our tracks. Apparently, even though the engine is off, and blades blocked, there is a fair amount of tension left in the belt, which would cause the blades to spin when the jam is freed. Since we like having all 10 of our fingers pristinely attached to their respective hands, I pushed the lifeless snowblower back into the garage, and we grabbed our shovels for a long week of pushing and lifting snow.

“What,” you are saying to yourselves, “does this story have to do with employee terminations?”

When you terminate an employee, you cannot act on impulse. When the snowblower jammed, my first impulse  was to do everything possible to unjam it. The joy of my success, however, would have been severely tempered by a hospital trip to reattach my finger(s). The same holds true when you terminate an employee. Without exception, you cannot act out of anger or impulse. Your decisions must be well researched and deliberate. Review the personnel file. Talk to managers and supervisors. Read relevant policies. Research how similar employees have been treated in similar situations. And, if you have any doubt, call your employment lawyer. More often than not, impulse leads to lawsuits.

I’ll leave it to you to decide—between a lawsuit or lost finger—which is the more painful.

WIRTW #354 (the “dad working” edition)

There is only one person that I chose to live with longer than my wife—Rob Schwartz, my college roommate. We shared a doom room, and then an apartment, for four years in Binghamton, NY. It’s no wonder that our world views are so similar. I cannot more highly recommend his newly launched blog, Dad Working. His mission:

There are tons of blogs about the challenges of working moms and I recognize the reality in their struggles, too. I’m hoping to fill the gap for those fathers who also strive and struggle with the expectations of home and work while presenting a new view of what it means to be one of two working parents.

Welcome to the wonderful world of blogging (or, as I call it, my addiction).

Here’s the rest of what I read this week:

Discrimination

• EEOC v. Abercrombie & Fitch: employers as mind-readers — via Walter Olson’s Overlawyered
• Take Me To Court: The EEOC Is Allowed To Continue Pursuit Of Individual Prayer Break Religious Discrimination Claims — via EEOC Year-End Countdown
• Title IX: an employment law too? — via Employment Law Bits
• Collision course? LGBT protection and religious freedom — via Michigan Employment Law Connection
• Addiction and the ADA: The “Current User,” Safe Harbor — via Understanding the Americans with Disabilities Act (ADA)
• Employers, don’t be caught in the “bogus RIF” trap! — via Robin Shea’s Employment & Labor Insider

Social Media & Workplace Technology

• Secret’s Safe With Me — Or is It? Workplace Privacy in the Internet Age — via Evil HR Lady, Suzanne Lucas
• Yes, It’s Evil: Why You Really Need to Restrict Email in the Office — via TLNT
• Are Facebook Photos More Discoverable In Litigation Than Other Social Media Content? — via Technology & Marketing Law
• Before Uber revolutionizes labor, it's going to have to explain these embarrassing emails — via Verge
• Top 5 Legal Issues in the Internet of Things, Part 1: Data Security & Privacy — via Augmented Legality
• Hack to the Future: Ten Cyber Risk Developments Watch in 2015 — via The D & O Diary

HR & Employee Relations

• Managing Inclement Weather — via Employer Law Report
• Evil Skippy’s Top Ten Ways To Avoid Workplace Embarrassment — via Evil Skippy at Work
• Employee Handbook Basics for Small Businesses — via Blogging4Jobs
• Follow the DOs and DONTs of Background Checking in 2015 — via Workplace Insights

Wage & Hour

• Why Having a Compensation Strategy is a Must — via ERC’s HR Insights Blog
• Do You Have to Offer Your “Temps” Coverage Under the ACA? — via The Emplawyerologist
• In Wage and Hour lawsuits it is not just the company that gets sued! — via Mike Haberman’s Omega HR Solutions
• A Substantial Salary-Test Jump Is Likely — via Wage and Hour Laws Blog
• To Be or Not to Be … An Employee – Second Circuit Expected to Answer Question of When an Intern is an Employee — via Michigan Employment Law Advisor
• Can Your Employer Force You To Sign A Contract Saying You Volunteered To Work On Sunday? — via Donna Ballman’s Screw You Guys, I’m Going Home
• Underreporting of Time Not An Excuse To Violate the FLSA — via Overtime Lawyer Blog
• Another FLSA Off-the-Clock Case: Employees Allegedly Ordered Not To Report Time — via Wage & Hour - Development & Highlights

Labor Relations

• Labor Union Membership Up Big Locally and Down Nationally, Recent Statistics Show — via Dan Schwartz’s Connecticut Employment Law Blog
• The National Labor Relations Board 2014 Year in Review — via Pennsylvania Labor and Employment Blog
• Labor Relations Board Under Renewed Attack — via Workplace Fairness
• NLRB rulings have far-reaching impact on employers and policies — via HR Hero Line
• Cannot Fire Employees for Foul Language if Cursing is Part of the Corporate Culture — via Matt Austin Labor Law

Will Ohio raise its minimum wage?

Chris Rock once said, “You know what it means when somebody pays you minimum wage? … ‘Hey, if I could pay you less, I would.’”

If Ohio Senate Bill 25 becomes law, that minimum in Ohio will go up.

Yesterday, 10 Senators introduced S.B. 25 [pdf], which proposes comprehensive reform to Ohio’s state wage-and-hour laws.

If passed, it would:

• Raise the minimum wage to $10.10
• Raise the salary threshold for the executive, administrative, and professional exemptions to $50,000 per year for 2016, and $69,000 per year for 2017 and beyond.

All 10 of the sponsors of S.B. 25 are Democrats. The problem, though, is that the Ohio has 33 state senators, and the other 23 are all Republicans. Thus, this bill has little chance of advancing out of committee, let alone becoming law.

Nevertheless, there a class war waging in this country, with the minimum wage as its front line. Expect this issue to be front and center as we approach the next national election cycle in 2016.

Employers seek to halt EEOC’s efforts to drum up plaintiffs for its “Onionhead” lawsuit

You may recall the lawsuit filed the EEOC claiming that a New York employer forced its employees to join a religion called “Onionhead.”

Now, Employment Law 360 reports that the company’s counsel is trying to block the EEOC from reaching out to the company’s employees to seek additional plaintiffs for its lawsuit.

The employers have asked the federal judge hearing the case to block the EEOC from any further “solicitations of Defendants’ current and former employees for participation in the lawsuit.” You can download a copy of the employers’ letter to the court here [pdf].

According to the company, the EEOC’s letters, printed on government letterhead, provided the employees a one-sided description of the case, omitted a statement that liability has yet to be decided, and created the impression that the employee must contact the EEOC.

Decide for yourself.

If the employer is true, the EEOC is going to have issues. A federal agency cannot misrepresent litigation to drum up support among employees. It also cannot provide employees a mistaken impression that they must cooperate.

At the same time, however, employers faced with alleged misconduct like that alleged in the Onionhead lawsuit must tread very carefully so that they do not unlawfully retaliate against the employees by interfering with their participation rights. For example, an employer cannot forbid employees from cooperating with the EEOC, or even dissuade them from contacting the agency.

What should employers do?

• They can tell employees that it is their choice whether to contact, or cooperate with, the EEOC.
• They can tell employees to be truthful when talking with the EEOC.

What must employers do? 

• They must guarantee employees that they will not suffer any retaliation, no matter their choice.

Employers faced with an EEOC investigation should know that the agency is using these tactics, so that they can proactively, and lawfully, respond by delivering the right message to their employees.

The internet might be for porn, but not on work computers

I spent yesterday working from home, as Cleveland got socked with nearly a foot of snow and my kids had the day off from school.

While working from home, I came across an article from Crain’s New York Business, entitled, Porn and the snowbound workforce. The article argued that winter storms lead to increased software security violations, including those on company-owned computers that employees are using to work from home, including a spike in malware infections.

[I]ncreased levels of malware infections go almost hand-in-hand with increased traffic to porn sites. Adult-content platform Pornhub reported a 21% increase in traffic from New York City-based users during this week’s storm…. For randier New Yorkers who might have been home with work-provided laptops, the blizzard malware infections could cause more than just an uncomfortable chat with human resources.

Companies should want employees to have the flexibility to work from home during inclement weather. It’s certainly safer than having them traverse icy or snow-covered roads. Moreover, it enables you to capture some of the productivity you would otherwise lose from childrens’ snow days and other weather-related days off. Companies must, however, make it clear to employees that work computers are for work, and not for play, even if the employee is using the computer at home.

Consider the following Telecommuting Principles, from the Emory WorkLife Resource Center:

• The user’s local IT unit must provide, maintain, and support a computer with an approved Emory configuration defined by the Local IT unit. The configuration must address the Information Security Requirements for Telecommuting Arrangements which includes items such as current security updates and anti-virus capability, removal of administrative rights, proper firewall configuration, and security incident reporting requirements.
• Telecommuters must use only the Emory provided computer for telecommuting.
• Telecommuters must protect the computer issued to them and any sensitive data that it might contain.
• Telecommuters may not store sensitive information on the computer unless authorized to do so, and even then, telecommuters must only store the absolute minimum required.
• Telecommuters must encrypt or password protect documents that contain sensitive information when possible, and upgrade to Full Disk Encryption when an enterprise solution becomes available.
• Telecommuters may not transfer sensitive data to non-Emory owned systems or removable media, and they may not allow unauthorized users to use the computer issued for telecommuting.
• Users must immediately notify their manager and local IT support if a system used to telecommute is lost or stolen or if the system is compromised or suspected of being compromised by a computer virus or hacker.

These types of policies cannot guarantee a malware-free IT infrastructure. They will, however, provide you some sense of security in knowing that your employees are aware of the issue, while at the same time providing you the ammunition you need to support action against a employee who misuses your computers.

Mark this beastly religious accommodation case for the employer

Last Monday, I wrote about a jury verdict against an employer that refused to make accommodation for an employee who objected to the use of the company’s time-keeping hand scanner for religious reasons. In response, one reader commented:

Seems to me that the law should require some sort of reasonableness requirement on the plaintiff. There’s no reason we should have to accommodate every ridiculous whack-a-doodle demand…. “The Mark of the Beast”? Seriously??? We should not have to cater to such nutjobs, and it makes a mockery of our legal/political/economic system to have to do so.

Well, captain_quirk, this one’s for you.

Last week, the 6th Circuit, in Yeager v. FirstEnergy Generation Corp., held that an employer does not have to accommodate an employee’s religious beliefs if those religious beliefs conflict with a requirement of federal law.

When the plaintiff, Donald Yeager, turned 18, he disavowed his social security number. As a Fundamentalist Christian, he believed that being identified by any number, including the federally mandated social security number, was having the “Mark of the Beast.” (Amazingly, Yeager is not alone in this thinking.) FirstEnergy refused to hire Yeager because he would not provide his social security number. Yeager sued, and lost.

Every circuit to consider the issue has [held] that Title VII does not require an employer to reasonably accommodate an employee’s religious beliefs if such accommodation would violate a federal statute. Some courts have [held] that a statutory obligation is not an “employment requirement,” while others have held … that violating a federal statute would impose an “undue hardship.” These dual rationales arrive at the same, sensible conclusion: “[A]n employer is not liable under Title VII when accommodating an employee’s religious beliefs would require the employer to violate federal … law.”

The Internal Revenue Code requires employers such as FirstEnergy to collect and provide the social security numbers of their employees. In this case … FirstEnergy’s collection of Yeager’s social security number is a “requirement imposed by law” and therefore not an “employment requirement.”

Despite this highly sensible decision, I stand by my conclusion from last week’s discussion—much more often than not, requests for accommodations are not the demarcation on a battleground, but the call for a middle ground … unless the request asks you to violate a federal law, in which case all bets are off.

WIRTW #353 (the “sphere of influence” edition)

Earlier this week, Moodvise published its list of the The 100 Most Influential People in HR and Recruiting on Twitter. I clocked in at a respectable #83. If you are new to Twitter, or just looking for a good list of folks to follow for your 140-character HR nuggets, you should check on Moodvise’s top 100.

Here’s the rest of what I read this week:

Discrimination

• End tenure as of age 70… — via Walter Olson’s Overlawyered
• For the defense: It’s getting complicated — via Michigan Employment Law Connection
• McDonald's Corporation Sued In Employment Discrimination Case — via Overtime Lawyer Blog
• Court Holds Employer Who Fired Employee For Making Death Threats May Have Violated ADA — via The Employment Brief
• Two big sexual harassment cases: where the employers went wrong — via Robin Shea’s Employment & Labor Insider
• McDonald’s Wrongful Termination Lawsuit to Test NLRB Decision — via WSJ.com Law Blog

Social Media & Workplace Technology

• Hack to the Future: Eleven Cyber Risk Developments Watch in 2015 — via The D & O Diary
• Data Security and Cyberthreat Trends for 2015 — via The SHRM Blog
• OK to monitor email without consent? — via Business Management Daily

HR & Employee Relations

• If You Run Credit Checks on Your Job Candidates, Now Would Be A Good Time To Panic — via Evil HR Lady, Suzanne Lucas
• S’now Joke: You are Fired for “Bad Weather” — via Workplace Prof Blog
• Miles on Employee Handbooks — via Phil Miles’s Lawffice Space
• How should your office handle snow days? — via Ask a Manager
• Handling Employee Theft — via HR Examiner with John Sumser
• Do I Have To Respond To A Complaint About “Deflated Balls” — via Evil Skippy at Work
• Playing “I-Spy” in the NFL Deflate-Gate Is No Different than the Workplace — via Sherman Law Corporation
• A Working from Home Experiment Shows High Performers Like It Better — via Harvard Business Review

Wage & Hour

• BLIZZARD! Wage and Hour Reminders for Employers on Winter Storm — via Dan Schwartz’s Connecticut Employment Law Blog
• FACT OR FICTION: Snow + Office Closed = FMLA Day — via Eric Meyer’s Employer Handbook Blog
• Unpaid Internship Showdown at the Second Circuit — via The Wage and Hour Litigation Blog
• FLSA Collective Action Certified By NJ Federal Court: Another Dangerous “Electronic” Class Action — via Wage & Hour - Development & Highlights
• Employers Cannot Rely on Timekeeping Policies as a Defense to FLSA Claims — via HR Defense Blog
• Eleventh Circuit Explains That Employer Knowledge of Work Renders It Compensable — via Wage and Hour Law Update

Labor Relations

• Despite Government Efforts, Union Density Slips Further — via LaborPains.org
• Labor board readies flurry of decisions — via The Hill
• Ithaca Adjunct Faculty Begin Organizing Effort — via Labor Relations Today
• NLRB’s Budget Increases as Workload Decreases — via Matt Austin Labor Law
• What is a “Right to Work” law? — via Texas Employment Law Blog
• Union Membership Declines In 2014 — via Labor Relations Today
• NLRB: Employers may terminate employees for insubordinate social media messages — via Technology for HR

Help EmployeeScreenIQ with its 6th annual Employment Background Screening Survey

Every now again I get to do something nice for people I like. Today is one of those days. EmployeeScreenIQ is conducting its 6th annual Employment Background Screening Survey.

According to the company:

In its 2015 survey, EmployeeScreenIQ again sets out to capture the various influences on employers' hiring practices and how they respond when adverse information is revealed. What type of criminal history or resume discrepancy is egregious enough to disqualify a job candidate? How are employers handling job applicants when red flags arise? The threat of lawsuits over discriminatory hiring practices, complex and confusing "ban the box" laws, resume distortion and social media overreach are among the serious challenges that continue to vex the HR community when conducting employment background checks.

All participants will receive a copy of the published results, along with an entry for a $250 Amazon gift card (not that anyone is bribing you).

The survey is available here.

Given the proliferation of FCRA class action lawsuits, along with EEOC’s stepped-up enforcement against the use of criminal histories in hiring, this survey is well worth your time.

Jury verdict teaches that “open door” policies must still comply with EEO laws

There exists an inherent tension  between open-door and other self-reporting policies and the EEO laws.

Consider, for example, a recent $100,000+ jury verdict against a trucking company for disability discrimination. The company maintained a written “Open Door” policy, and an unwritten policy that prohibited any driver who self-reported alcohol abuse from ever returning to driving. The EEOC sued after an employee who availed himself of the Open Door policy to self-report an alcohol addiction was banned from any future driving for the company. Even though the company offered the driver a part-time dock position as an accommodation, the EEOC successfully argued that the employer failed to “make an individualized determination as to whether the driver could return to driving and provide a reasonable accommodation of leave to its drivers for them to obtain treatment,” and that “to maintain a blanket policy that any driver who self-reports alcohol abuse could never return to driving—with no individualized assessment to determine if the driver could safely be returned to driving—violates the ADA.”

Employees need to be able to engage in protected activity without any retribution or other negative consequences. In this case, the employer learned of a disability and failed to engage in the interactive process for a reasonable accommodation. In others, employers might retaliate against an employee who uses an open-door policy to complaint about discrimination or harassment.

Open-door policies are laudable. They foster the communication that is necessary between employees and management necessary for a healthy (and hopefully union free) work environment. With that openness, however, comes responsibility—the responsibility to learn information without retaliating. Employees need to train management so that they know what to do with protected information once they learn it, and how to act without violating any of our EEO laws. Without this training, employers are setting up their open-door policies and programs for a litigation fail.

The full press release about this jury verdict is available here.

The FMLA has eligibility limits (unless you tell your employees otherwise)

The FMLA does not provide leave benefits to all employees of all employers. First and foremost, it only covers employers with 50 or more employees. And, only a subset of employees of a covered employer is eligible for FMLA leave.

An employee is eligible for FMLA leave from a covered employer if the employee—

1. was employed by the employer for at least 12 non-consecutive months;
2. worked 1,250 hours during the 12-month period preceding the start of the requested leave; and
3. works at a location where the employer employs 50 or more employees within a 75-mile radius.

Employees who fails to meet any one of these criteria are not eligible for FMLA leave … unless the employer tells them otherwise.

In Tilley v. Kalamazoo County Road Commission (6th Cir. 1/26/15) [pdf], the employer maintained the following FMLA policy:

Employees covered under the Family and Medical Leave Act are full-time employees who have worked for the Road Commission and accumulated 1,250 work hours in the previous 12 months.

The employer, however, denied Tilley’s request for FMLA leave because he did not work at a location that employed 50 or more employees within a 75-mile radius. Based on the employer’s unambiguous policy, however, the court concluded that the employer waived any ability to rely upon the 50-employee threshold.

This is an unambiguous and unqualified statement that Road Commission employees, like Tilley, who have logged 1,250 hours in the year before seeking FMLA leave are covered by the FMLA and are eligible to apply for FMLA benefits…. 

The Road Commission could have qualified its statement concerning employee eligibility by adding that its full-time employees would only be covered by the FMLA if they worked at, or within 75 miles of, a site at which the Road Commission employed at least 50 employees. That is precisely what other employers have done…. 

And we are unwilling to conclude as a matter of law that Tilley was unreasonable in relying on the Manual’s statement that employees in his position were eligible to apply for FMLA benefits. Simply put, a reasonable person in Tilley’s position could fairly have believed that he was protected by the FMLA.

Bottom line? Courts will hold you to your word if you mis-represent FMLA eligibility to an otherwise ineligible employee. If you, as an employer, do not want to go beyond the FMLA’s baseline requirements, you need to check, and then double-check, your leave policies, to make sure you are not promising your way into more coverage than intended.

Should it matter if your employee thinks hand scanners are tools of Satan?

If you’re a long time reader of my blog, you might recall a story I shared a few years ago about a co-worker at one of my high-school jobs, who held some interesting opinions about Lee Iacocca, Satan, and the end of the world. At the time, I made a point about taking the path of least resistance with reasonable accommodations.

Apparently, Consol Energy is not a blog subscriber.

The Pittsburgh Post-Gazette brings us the story of Beverly Butcher Jr., an employee at its Robinson Run, West Virginia, mine, and an Evangelical Christian, who refused to use the company’s hand scanner to clock in an clock out, because he believed it would imprint him with the “mark of the beast.” Instead of working with Butcher, or providing him an alternative way to track his time, the company mandated his use of the hand scanner. He quit, the EEOC sued on his behalf, and, last week, a federal jury ruled in his favor, awarding him $150,000 in compensatory damages on his religious discrimination claim. Later this year the court will rule on back pay, front pay, punitive damages, and attorneys’ fees.

Whether or not an employee is entitled to a religious accommodation is not dependent upon whether or not you happen to agree with the employee’s religious beliefs. Instead, it hinges solely on whether the beliefs are sincerely held, and, if so, whether you can provide the accommodation without it imposing an undue hardship. While this employer could make a credible undue-hardship argument based on the need for accurate time tracking, and uniformity among employees, it it worth it. Denying the requested accommodation—not using the hand scanner and tracking time in and time out with a different tool—is not worth the headache and associated costs of a federal lawsuit (verdict included).

Requests for accommodations (whether for religious or disability purposes) are not the demarcation on a battleground. Instead, they are a call for a middle ground. Employers need to recognize this truth, and starting wars that simply are not worth fighting.

WIRTW #352 (the “rock hard” edition)

In my never-ending quest to be an employment lawyer and manager for my 8-year-old daughter’s burgeoning rock career, I bring you 4:50 of melt your face off rock and roll from last weekend’s School of Rock Joan Jett show. That’s Norah killing the lead guitar on “You Got A Problem,” and closing the show with “Bad Reputation.”

My personal favorite part—Norah’s demure, “Thank you very much / Have a good afternoon” after screaming about her bad reputation. Who said polite manners and rock ‘n’ roll don’t mix?

You can check out the repeat performance tomorrow, January 24, at 1 pm at the Music Box Supper Club.

Here’s what I read this week:

Discrimination

• New Retaliation Standard of Proof Shows Its Teeth — via Dan Schwartz’s Connecticut Employment Law Blog
• Keeping Up With the EEOC in 2015 — via Law.com - In-House Counsel
• Donuts & Pregnancy Rumors: A Cautionary Tale — via All in a Day’s Work
• A hospital may have broken the law by NOT hiring a convicted meth dealer — via Eric Meyer’s The Employer Handbook Blog
• Does sex discrimination protection extend to everyone? — via Mike Haberman’s Omega HR Solutions
• Telecommuting Discrimination — via hr bartender
• EEOC’s Arguments to Supreme Court Antithesis of Transparency and Open Government — via WinWinHR
• Is It Time To Make Fat People A Protected Class?​ — via Above the Law
• Five errors that make defending an employment lawsuit harder — via California Employment Law Report
• You’ve gotta be kidding. THIS is retaliation? — via Robin Shea’s Employment & Labor Insider

Social Media & Workplace Technology

• Why Companies Are Doling Out Wearable Devices to Employees — via Next Blog
• Do We Need a “Right to Be Forgotten” in the U.S.? — via Technologist
• Glassdoor Matters Because ALL of Your Employees Are Now Used to Rating Things — via The HR Capitalist, Kris Dunn

HR & Employee Relations

• Should I Check With A Lawyer Before Firing Someone? — via Evil Skippy at Work
• Background Checks – Should We or Shouldn’t We? — via Genesis HR Solutions
• Background Checks: The Devil Is In The Detail — via fyiscreening.com
• 20 Things You Wish Your Coworkers Wouldn’t Do — via Evil HR Lady, Suzanne Lucas
• Debunking 4 Common PEO Myths — via GMS Blog

Wage & Hour

• Wage-Hour Litigation To Rise in 2015: So What Else Is New? — via Wage & Hour - Development & Highlights
• Judge Vacates Parts of USDOL Home-Care Regulation — via Wage and Hour Laws Blog
• Eleventh Circuit Explains That Employer Knowledge of Work Renders It Compensable — via Wage and Hour Law Update
• Should I let employees just leave a voicemail message when they’re going to be out sick? — via Ask a Manager
• Employer Requires Employee to Work During FMLA Leave. Ummmm, Is This a Problem? — via Jeff Nowak’s FMLA Insights

Labor Relations

• Technological change drives three new NLRB decisions — via Business Management Daily
• Newly Released Guidance from NLRB Regarding Social Media Policies — via Matt Austin Labor Law

Why performance reviews matter in employment litigation

According to Employment Law 360, a federal judge has indicated that he will likely deny the motion for summary judgment Deutsche Bank intends to file seeking the dismissal of a sex discrimination lawsuit brought by one of its former vice presidents.

The lawsuit alleges that bank “mommy-tracked” the plaintiff, a 14-year employee with a strong performance history, and ultimately fired her. Her lawyer argued to the court that her strong history of performance reviews demonstrates pretext in the bank’s decisions regarding her performance. In response to the bank’s counter-arguments about her performance (which included an argument that her positive reviews resulted from an “easy grader”), the judge responded, “It’s all sounding really fact-y to me.”

Folks, performance reviews matter. They not only matter in managing your employees during their employment, but they also matter in defending lawsuits about their employment. If you plan on terminating an employee on performance, you need to have the goods to back it up. What should you be doing before the termination? Checking the reviews to make sure the paper trail supports the poor-performer argument. If it doesn’t, you best have a solid explanation as to why. Otherwise, your termination will start to smell not only “fact-y”, but also possibly “pretext-y.” The last thing you want in a discrimination case is for your decision to have the scent of pretext.